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TMI Blog2006 (2) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... persons referred to in the proviso to sub-section (1) of Section 68 for the filing of return. It cannot, therefore, be accepted that the time limit for filing of return by the appellant should be computed on the basis of the provision of Sections 70 and 73 as from the date on which the half-yearly return could have been filed under Section 70 read with Rule 7 which were wholly inapplicable in case of the appellant when specific provision of Section 71A was made in the context of the persons like the appellant for filing of the return and period within which the return was to be furnished was also provided. The contention that the appellant was not liable to pay the service tax since the recover would have been time barred on the basis of the deemed liability having been arisen earlier on the expiry of the relevant period in 1998, is, therefore, wholly misconceived. The return filed by the appellant under Section 71A on the basis of self-assessment could have been verified under Section 71 by the concerned officer in view of the specific provision made in Section 71A to the effect that Section 71 shall apply to such return. However, even when it was not taken up for verification, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed and paid the service tax correctly in terms of the provisions of said Act and rules made thereunder. In the forwarding letter dated 20/24-11-2003 which is on record, it was stated by the appellant that the said amount was paid as service tax under protest, with the right to seek refund of the same if at a later date the Apex Court holds it ultra vires and/or not payable . It was stated that the fresh returns were also filed with the requisite TR-6 challans evidencing payment of service tax on the freight amount paid during the period from 16-11-1997 to 1-6-1998. According to the appellant the service tax on the freight paid by the appellant to the goods transport operators during the period from 16-11-1997 to 1-6-1998 was not payable by the appellant. Earlier, by communication dated 10-11-2003 the appellant had informed the Revenue that they were not making any payment of service tax for the relevant period and that they were not under an obligation to file a fresh return for the said period in the prescribed form ST-3B. It was stated that the amendment brought about by Section 158 of the Finance Act, 2003 was intended to apply only to such cases where action was already taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action. It was further submitted that assuming machinery provisions had been made, service tax would have become payable latest by July 1998 for the period ending 2-6-1998 and therefore the right to demand such tax had lapsed since long. The amendment by Finance Act, 2000 should be construed so as to cover cases where notices of demand were already issued within the stipulated period of limitation. Relying upon the decision of the Tribunal in M/s. L.H. Sugar Factories Limited Others v. CCE Meerut-II reported in 2004 (165) E.L.T. 161 (Tri.-Del.), in which it was held that the class of persons who come under Section 71A was not brought under the net of Section 73 and therefore show cause notices issued to those appellants invoking Section 73 were not maintainable, the appellant claimed that it was entitled to the refund of the said amount. 2.2 The learned Assistant Commissioner on the basis of the material on record and considering the contentions raised by the parties came to the conclusion that in view of the amended provisions of Section 68 (1) by which the proviso was inserted with retrospective effect from 16-7-1997 and which, inter alia, provided that in relation to services p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of the amendment made in the service tax provisions by Finance Act, 2003. The appellant was, therefore, not entitled to the refund, it was noted that the appellant s protest while paying the service tax was only on the ground that they would claim the refund if the Apex Court held the provisions inserted by the Finance Act, 2000 to be ultra vires. Arguments on behalf of the appellant : 3. It was contended by the learned Counsel appearing on behalf of the appellants that the amendments made in the years 2000 and 2003 were intended only to validate the action already taken earlier under the provisions of the rules which were set-aside as ultra vires the Act by the Supreme Court in Laghu Udyog Bharati v. UOI, reported in 1999 (112) E.L.T. 365 (SC), which was rendered on 27-7-1999. Since no action was already taken in the case of the appellant, the provision of the validating Act did not create any liability on the part of the appellant to pay the tax in respect of the said period from 16-11-1997 to 1-6-1998. It was then contended that the Finance Act, 1994 contemplated an outside period of limitation of five years in Section 73 and therefore no demand of service tax could have s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not the case before it. (C) The decision of the Supreme court in Hyderabad Industries Ltd. and Another v. Union of India and Others reported in 1999 (108) E.L.T. 321 (S.C.) = (1999) 5 SCC 15 was cited with a view to point out that the Supreme court had referred to the notes to the clauses to the Customs Tariff Bill to find out the legislative intent of providing for a charging section in the Tariff Act. (D) The decision of the Supreme Court in J.K. Spinning and Weaving Mills Ltd., and Another v. Union of India and Others reported in 1987 (32) E.L.T. 234 (S.C.) was cited to point out that the Supreme Court rejecting the contention of the Revenue that as Section 51 of the Finance Act 1982 has made the amendments for retrospective in operation since February 28, 1944, it should be held that it overrides the provision of Section 11A, held that if the intention of the legislature was to nullify the effect of Section 11A, in that case, the legislature would have specifically provided for the same. (E) The decision of this Tribunal in L.H. Sugar Factories Ltd. v. Commissioner of C.Ex. Meerut-II reported in 2004 (165) E.L.T. 161 (Tri.-Del.) was cited for the proposition laid down in parag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid period under the amended provisions shall file the return. It was submitted that persons like the appellant could not have filed the return under Section 70 and they are covered under Section 71A. As regards service tax having been paid under protest it was submitted that, Section 11B of the Central Excise Act only gave right to the assessee paying duty under protest to make a claim of refund irrespective of the time limit prescribed under the proviso to Section 11B. It was submitted that the adjudicating authority was under no obligation to assess in cases of self-assessment, and even if there was no regular assessment the service tax paid by the appellant on the basis of self-assessment was to be treated as tax assessed and paid. It is only in case of provisional assessment that there would arise an obligation to assess. It was then argued that since there was no demand made by issuing any show cause notice on the appellant the question of applicability of Section 73 did not arise in the present case and the decision of this Tribunal in L.H. Sugar Factories Ltd., was not applicable to the facts of the present case. It was further argued that the obligation to pay the tax aris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing and forwarding agents have explicitly been made liable to pay the service tax. The Supreme Court held in para 23 of the judgment that a legislature was competent to remove infirmities retrospectively and make any imposition of tax declared invalid, valid. It was held that the law must be taken as having always been as was now brought about by the Finance Act, 2000 and that the statutory foundation for the decision in Laghu Udyog Bharati was replaced and the decision has thereby ceased to be relevant for the purposes of construing the provisions. (B) The decision of the Tribunal in Supreme Woollen Mills Ltd. v. Commissioner of Customs, Nhava Sheva, Mumbai reported in 2004 (167) E.L.T. 439 (Tri.-Del.) was cited for the proposition that once duty legally payable by importer has been paid, question as to whether there was any provision in the Act at the relevant time for demanding duty or not is irrelevant. (Paragraph 5) (C) The decision of the Madras High Court in Eternit Everest Ltd. v. Union of India reported in 1997 (89) E.L.T. 28 (Mad.) was cited to point out that even where it was held that the proceedings issued in the demand cum show cause notices were without jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ications made thereunder. Section 65 of the Finance Act, 1994 was modified by substituting clause (6) thereof, as a result of which definition of assessee was altered so as to, inter alia, include in relation to services provided by a goods transport operator, every person who pays or is liable to pay the freight either himself or through his agent for the transportation of goods by road in a goods carriage. Thus, in respect of the services provided to the appellant for the said period in question the appellant, by virtue of the said amendment, became assessee who was liable for collecting the service tax under the amended definition clause. 6.1 Section 117 of the Finance Act, 2000 validated the action already taken by providing that notwithstanding anything contained in any judgment, decree or order of any court, Tribunal or authority, sub-clauses (xii) and (xvii) of clause (d) of sub-rule (1) of Rule 2 of the Service Tax Rules, 1994 as they stood immediately before the commencement of Service Tax (Amendment) Rules, 1998 shall be deemed to be valid and to have always been valid as if the said sub-clauses had been in force at all material times and accordingly, any action taken or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 71 shall apply accordingly, to such returns. Rule 7A thereupon came to be inserted by the Service Tax (Amendment) Rules, 2003 w.e.f. 14-5-2003 in which it was provided that, notwithstanding anything contained in Rule 7 which related to half yearly return, an assessee in case of service provided by goods transport operator for the period from 16th day of November 1998 to 2nd day of June 1998 shall furnish a return within a period of six months from the 13th day of May, 2003, in Form ST-3B along with copy of Form TR-6 in triplicate, failing which the interest and penal consequences as provided in the Act shall follow. It is, therefore, clear to us that not only the past recoveries were validated by Section 117, the amendment also provided for continuance of the liability of persons falling in the proviso of section 68(1) who were to be deemed always to have been liable to pay service tax, for such services provided, to the credit of the Central Government. In such cases there was no scope for the applicability of Section 70 of the said Act and, therefore, the special provision for filing of returns was necessarily required to be made as per Section 71A, because, they could not have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r filing of return by the appellant should be computed on the basis of the provision of Sections 70 and 73 as from the date on which the half-yearly return could have been filed under Section 70 read with Rule 7 which were wholly inapplicable in case of the appellant when specific provision of Section 71A was made in the context of the persons like the appellant for filing of the return and period within which the return was to be furnished was also provided. The contention that the appellant was not liable to pay the service tax since the recover would have been time barred on the basis of the deemed liability having been arisen earlier on the expiry of the relevant period in 1998, is, therefore, wholly misconceived. The return filed by the appellant under Section 71A on the basis of self-assessment could have been verified under Section 71 by the concerned officer in view of the specific provision made in Section 71A to the effect that Section 71 shall apply to such return. However, even when it was not taken up for verification, it cannot be said that the service tax paid on the basis of self-assessment was not tax assessed. Since the service tax was validly paid under the liabi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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